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On Balance by Megan Zavieh
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On Balance

A Welcome Shift in How State Bars Are Addressing Mental Health

More states move to remove mental health questions from bar applications — but is it enough?

By Megan Zavieh

Mental health struggles in stressful professions  including the law — is a tough topic. And headlines of suicides in difficult lines of work are far too frequent. However, there is some hope in a recent California bill and action by New York with respect to moral character applications for lawyers. If we stop asking applicants about their mental health, might we remove the stigma from getting help and redirect the tide?

Lawyer Suicide Epidemic

Lawyer suicides are deeply concerning. The legal profession received a major wake-up call last fall when Sidley Austin partner Gabe MacConaill took his own life, and his widow wrote a widely publicized open letter to the profession.

Of course, we know lawyers are not alone. In New York City this month, three police officers died by suicide in a period of under 10 days. Recently featured on ESPN is Army Staff Sgt. Earl Granville, an amputee who has completed such feats as the first Spartan Race Para Elite heat and the New York City Marathon. He’s risen above his own dark times since losing his twin brother, a fellow Army staff sergeant, to suicide.

In the January 2019 issue of the ABA Journal, Jeeno Cho, co-author of “The Anxious Lawyer,” wrote a great piece discussing lawyer suicide, going into depth on what lawyers need to know and how to prevent it.

Removing Stigma Surrounding Mental Health

To adequately address the problem, we must remove the stigma around getting help for mental health issues. As Cho wrote, lawyers are 3.6 times more likely than nonlawyers to suffer from depression. That is a huge number. When the American Bar Association released its joint study with Hazelden Betty Ford in 2016, it found that 28 percent of lawyers were suffering from depression. (Also, 23 percent were suffering deleterious effects of stress and 19 percent suffered from anxiety.)

Yet from law school onward, we are taught to hide weakness, to be strong and not ask for help. We learn to be stoic in the face of stress. And, of course, appear at all times busy. My first review in BigLaw was nearly 20 years ago, but I still remember it. I was told I gave the impression that I didn’t want to work weekends. My colleagues were astute, but I was heavily penalized for it.

How many other lawyers quickly learn that “yes” is the only acceptable answer to whether you will work more?

The perception that a lawyer always needs to work begins in the halls of law schools. It is exacerbated by state bar moral character applications that ask questions about mental health status. We must stop asking these questions, or law students will continue to shun the mental health care they need to assist them in transitioning into this stressful profession as healthy individuals. That same care can teach tools to help them maintain good mental health, and also give them a respect for mental health that may carry over into how they treat their colleagues.

There is encouraging news from around the country as more states show interest in no longer asking about applicants’ mental health background.

Moral Character Applications Are Changing

We are seeing a welcome shift in how state bars are addressing mental health — by removing questions related to it.

In Virginia, the primary mental health question was removed from the bar application earlier this year. (A question about the applicant’s “behavior,” but not mental health status, remains on the application, and that question could trigger some inquiry into behaviors that indicate a mental health problem.)

Connecticut entirely removed its mental health query this year. It had earlier removed its direct mental health treatment question, but like Virginia had left in a question about the applicant’s “behavior.” That question was deleted this year.

This movement began back in 2011 when the Department of Justice investigated Louisiana for its bar admission practices. That investigation was settled in 2014 with changes to the bar application. You might expect that investigation and settlement would have triggered a domino effect around the country. Instead, what followed was a very slow trickle of change. Washington state moved in 2016 to stop asking mental health questions and also cease inquiring into applicants’ health records. But these changes were very slow to catch on.

Perhaps 2019 will be the year where the dominoes really fall. On the heels of Connecticut and Virginia’s decisions, we now have New York and California, two of the largest state bars in the country, taking action.

The New York State Bar Association is formally looking into whether the state should change its application. In California, legislation is pending that would prohibit the bar from inquiring into or considering an applicant’s medical records, even if the records are public.

Will Change Be Meaningful and Impactful?

This recent movement is highly encouraging as, despite Louisiana’s DOJ settlement five years ago, the pace of change has been as glacial as with most ethics rules. However, deep concerns remain. Will the changes go far enough to effect a societal change in the profession when it comes to seeking treatment for mental health? Or will the questions be removed but reframed, such that applicants are just as hesitant to seek the help they need?

The National Suicide Prevention Lifeline is (800) 273-8255.

Related: Keep up with Link Christin’s Attorney at Work series on “Survival Skills for Lawyers” including emotional resilience, beating long-term stress, staying grounded during difficult cases and compassionate professionalism.

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Megan Zavieh Megan Zavieh

Megan Zavieh is the creator and author of “The Playbook: The California Bar Discipline System Practice Guide.” At Zavieh Law, she focuses her practice exclusively on attorney ethics, providing representation to attorneys facing disciplinary action and guidance on questions of legal ethics. Megan is admitted to practice in California, Georgia, New York and New Jersey, as well as in multiple federal courts and the U.S. Supreme Court. Her latest book, “The Modern Lawyer: Ethics and Technology in an Evolving World,” (ABA 2021 ) covers how to run a modern practice while staying in line with current ethics rules. She podcasts on Lawyers Gone Ethical, blogs on ethics at California State Bar Defense and tweets @ZaviehLaw.

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